Warning: This report includes details of rape.

In October 2021, Judge Nyameko Gqamana and Acting Judge Tembeka Ngcukaitobi overturned a rape conviction against Loyiso Coko, who had been found guilty of raping his girlfriend. The basis for their judgment, handed down in the Eastern Cape High Court, was Coko’s argument that the foreplay he engaged in with his girlfriend indicated she had tacitly consented to sex.

Now, the Supreme Court of Appeal (SCA) has found that the high court erred in acquitting Coko. In a judgment delivered on Wednesday, the SCA upheld the National Prosecuting Authority’s (NPA’s) appeal against the acquittal and reinstated Coko’s conviction.

“Were the conclusion reached by the high court to prevail, leading to the dismissal of this appeal, this would not only be a perverse incentive to unscrupulous persons taking advantage of their victims, but also have the effect of frustrating the speedy realisation of the constitutional objective of gender equality which is one of the foundational values of our constitutional order,” the SCA’s judgment stated.

“In addition, this would also entrench patriarchal attitudes, stereotypes and mindsets that the rights of women and children, in particular, to their dignity and physical integrity count for little and can therefore be gratuitously violated with impunity.”

Read more in Daily Maverick: ‘Foreplay’ judgment shows how problematic judicial views around consent in rape cases persists

The high court’s acquittal of Coko in 2021 caused a public outcry, with the Soul City Institute for Social Justice issuing a statement saying that the judgment showed “the extent of South Africa’s rape culture crisis”.

It continued, “As an organisation committed to the rights and wellbeing of young women and girls, we continuously advise young women of their right to bodily autonomy, that a woman is entitled to say no at any stage and they have a right for that position to be respected. And yet, this is what they can expect to face should they take legal action to protect this very right.”

Long road to justice

At his initial trial in a magistrates’ court, Coko pleaded not guilty to the charge of rape. However, he was found to have unlawfully and intentionally committed an act of sexual penetration on the complainant and was sentenced to seven years’ imprisonment.

The factual background to the case was laid out in the SCA judgment. Coko’s girlfriend, a university student in her early twenties, was a virgin who had, more than once, told him she was not ready to engage in penetrative sex.

On the day of the rape, the woman had agreed to spend the night with Coko at his apartment with the stated caveat that this did not mean she would engage in sexual intercourse. During the evening, they engaged in foreplay which she consented to. She told the court that Coko then raped her while she tried to push him off and told him that he was hurting her and should stop.

Coko acknowledged that the woman said that it was hurting, but claimed she did not say anything else or try to push him off.

In the SCA’s judgment, it noted, “The respondent [Coko] suggested that he understood the prolonged oral sex in which they had engaged as some form of foreplay to the penetrative sexual intercourse. Most tellingly, the respondent nevertheless accepted that penetrative sexual intercourse was not in their plans on TS’ [the complainant’s] visit on the fateful night.

“But he went on to state that penetrative sexual intercourse flowed from the ‘foreplay’ in the form of oral sex that they had engaged in preceding the penetrative sexual intercourse, including TS’ body language. The cumulative effect of these factors, so the respondent asserted, formed the basis for his assumption that TS was a willing participant even to penetrative sexual intercourse…”

After Coko was found guilty, he unsuccessfully applied to the regional court for leave to appeal against his conviction, before turning to the high court. There, a judgment written by Ngcukaitobi, with which Gqamana concurred, concluded that his conviction was unsustainable.

The high court found that the regional court “failed to take cognisance of the fact that consent to an act of sexual penetration can be granted either by explicitly communicating the consent to the other person or tacitly by conduct”, according to the SCA.

High court judgment

Ngcukaitobi’s judgment read, “It was the evidence of the Appellant [Coko] that throughout the encounter, the Complainant was an equally active participant, she was not merely passive — she kissed the Appellant back, she held him, she had no problem with the removal of her clothes, she watched him take off his clothes without raising an objection, she knew he was erect, she did not object to the oral sex.

“The only area where there was a dispute was after the penetration. It is in this area where the Complainant says she objected and said the penetration was hurting. The Appellant’s evidence was that when the Complainant said the penetration was hurting, he ‘would stop and then continue’…

“In these circumstances, I cannot uphold the findings of fact of the Magistrate, which are unjustified when one has regard to the record. I cannot hold that the state proved that the version of the Appellant that he genuinely believed there was at least tacit consent was false beyond reasonable doubt.”

The SCA emphasised in its judgment that consent to foreplay did not constitute consent to an act of penetration. It upheld the trial court’s finding that something more than body language was needed to establish consent. It also drew attention to the complainant’s testimony that she pushed Coko away and told him he was hurting her when he forced himself on her.

“Logic dictates that even in circumstances where consent has been given to a specific sexual act, it may also be withdrawn during the sexual act to which the consent relates… Even on this basis, we conclude that the crime of rape was established.

“In other words, even if TS had initially consented to an act of sexual penetration — which was not the case here — her cries and groans, indicated above, served as an unequivocal indication that she disapproved of the respondent’s conduct. Despite this, the respondent was unfazed and continued penetrating her,” the SCA stated.

The SCA concluded that rape was proved beyond a reasonable doubt in the case and that the high court’s interference with the findings of the trial court was “unwarranted”.

However, as part of its ruling, it remitted the question of Coko’s sentence to the high court for it to determine whether the seven-year sentence imposed by the regional court was appropriate. DM